INITIATIVES AND REFERENDUM--APPROPRIATIONS--TAXATION--Interpretation of provisions of Initiatives 601 and 602 that deal with the same subject in different ways
1. When two statutes passed by the Legislature deal with the same subject in different ways, the court will try to avoid any conflict by harmonizing the statutes, giving effect and meaning to both. If the statutes cannot be harmonized, the court usually applies the statute enacted later on the theory that it repeals the earlier statute.
2. Initiatives 601 and 602 deal with state revenue collections and expenditures in different ways. Certain provisions of these two initiatives cannot be harmonized, giving effect and meaning to both.
3. The usual rule of statutory construction that a later statute controls a conflicting statute enacted earlier does not apply in the case of two initiatives enacted simultaneously. If Initiatives 601 and 602 pass and the Legislature does not act to resolve any conflict between them, the courts will have to develop a new rule to choose between conflicting provisions of the two initiatives.
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October 11, 1993
HonorablePeter von Reichbauer
State Senator, District 30
112 Institutions Building, MS 40430
Olympia, WA 98504-0430 Cite as: AGO 1993 No. 16
Dear Senator von Reichbauer:
By letter previously acknowledged you asked for our opinion on the following questions:
1. Do Initiative Measure Numbers 601 and 602 conflict with one another?
2. Assuming that Initiative Measure Numbers 601 and 602 conflict with one another, what rules of law should be applied to resolve the conflict should the measures both pass in November?
You have asked us to analyze the relationship between Initiatives 601 and 602, based on the assumption that both initiatives will be enacted by the voters. Your request raises questions of first impression in Washington. Neither the courts nor this office has previously been called upon to interpret two initiatives enacted by the people in the same election that deal with the same subject in different ways. The courts have developed rules of statutory construction to deal with statutes enacted by the Legislature that deal with the same subject in different ways. These rules provide that the court will try to avoid any conflict between the statutes by harmonizing them, giving effect and meaning to both. If the court is unable to harmonize the statutes, it chooses between them by applying the statute enacted last. This rule is based on the theory that the later statute repeals the earlier statute. This rule does not apply here since your questions assume the simultaneous passage of Initiatives 601 and 602.
Your first question asks whether the provisions of Initiatives 601 and 602 would be in conflict. In other words, can the provisions of these initiatives, that deal with the same subject in different ways, be harmonized? Insofar as we are able to apply the rules of construction in this case, we do not believe that all of the provisions of these two initiatives can be harmonized. Thus, in our judgment the answer to Question 1 is yes.
Your second question asks how the court would choose between the two initiatives, if it were unable to harmonize them. We can provide no definitive answer to this question because the usual rule of construction does not apply to initiatives enacted simultaneously. However, in our analysis of Question 2, we do describe some rules of construction a court might employ to choose between the two initiatives.
We begin with an observation about the role of the Attorney General. The Attorney General is responsible for defending and interpreting statutes passed by the Legislature and initiatives enacted by the people. You have asked about Initiatives 601 and 602. If either, or both, of these initiatives pass, this office will be responsible for defending the people's decision and advising the Legislature and other state officials how to comply with the will of the people.
In this case you have asked for our advice prior to the election to provide assistance to members of the public who must vote on the two initiatives. In your letter you state: "So that voters may be more fully informed when they choose to accept or reject either or both of these initiatives, it is imperative that further guidance be provided regarding the questions I here pose." Accordingly, in responding to your request at this time, we hope to assist you and your legislative colleagues, other state officials, and members of the public in understanding the differences between Initiatives 601 and 602; the significance of those differences; and how those differences might be resolved.
At present, the state is operating under a state tax revenue limitation enacted in 1979 by the people as Initiative 62. Laws of 1980, ch. 1; chapter 43.135 RCW. Under Initiative 62, state tax revenue is limited to "the previous fiscal year's state tax revenue limit multiplied by the average state personal income ratio for the three calendar years immediately preceding the beginning of the fiscal year for which the limitation is being computed." RCW 43.135.030(1).
In addition to this limit on state tax revenue, the state has a budget stabilization account. RCW 43.88.520-.540. The budget stabilization account is designed to be a savings account for the state. RCW 43.88.530(1) provides that the state treasurer, pursuant to an appropriation, shall transfer to the account a sum equal to the annual growth rate in personal income minus three percentage points, multiplied by general state revenue for the immediately preceding fiscal year. Both Initiatives 601 and 602 would repeal these provisions. Init. 601, § 9; Init. 602, § 18. In their place each initiative would establish a comprehensive scheme to limit both state expenditures and increases in state taxes. Each initiative would also establish a savings account for the state which could be used in certain circumstances. Although each initiative proposes a detailed scheme to deal with taxing and spending, the initiatives differ in their approach.
Initiative 601 would approach the issue from the expenditure side. Section 2(1) of Initiative 601 would provide that the "state shall not expend from the general fund during any fiscal year moneys in excess of the state expenditure limit". This expenditure limit would be the previous year's state expenditure limit, increased by a percentage rate that equals the fiscal growth factor. Init. 601, § 2(3). The fiscal growth factor would be the average of the sum of inflation and population change for each of the prior three fiscal years. Id., § 2(6).
Although the focus of Initiative 601 is on state expenditures, it would also limit state revenue collection. Under the initiative, the Legislature could only increase state taxes, without a vote of the people, if the new revenue would not exceed the state expenditure limit and the tax increase was approved by a two-thirds vote in each house. Id., § 4(1).
Initiative 602 would approach the issue from the collection side. At the outset, Initiative 602 would provide that "all actions or combinations of actions by the state to increase state revenue measures over those in effect on December 31, 1992, shall revert to those in effect on December 31, 1992[.]" Init. 602, § 17. Section 6 of Initiative 602 would provide that "all state revenue measures from which state revenue collections are derived shall be imposed . . . in such a manner that estimated state revenue collections for each fiscal year will not exceed the state revenue collection limit established for the corresponding fiscal year." The state revenue collection limit would be calculated by multiplying the total state personal income for the fiscal year for which the limit is being calculated by the "limitation factor". Id., § 5(1). The "limitation factor" would be the percentage created by dividing the sum of total state revenue collections for the fiscal years 1988 through 1992 by the sum of total state personal income for those fiscal years. Id., § 3(9).
Although the focus of Initiative 602 is on state revenue collection, it would also limit state expenditures. Under the initiative, the state could not expend funds derived from state revenue collections for any fiscal year in excess of the state revenue collection limit established for the corresponding fiscal year. Init. 602, § 7.
In addition to these features, both initiatives: would permit their limits to be exceeded in certain emergency circumstances (Init. 601, § 4(3); Init. 602, § 10); would establish a procedure for imposing new taxes (Init. 601, § 4(1)-(2); Init. 602, § 9); and would establish an emergency or reserve fund into which excess revenue collections would be placed (Init. 601, § 3; Init. 602, § 8). Both initiatives would also amend RCW 43.135.060 which applies when the state imposes responsibility for new programs on any taxing district. Initiative 601, § 5; Initiative 602, § 13.
The initiatives differ with respect to their effective dates. All the provisions of Initiative 602 would take effect immediately. Init. 602, § 23. On the other hand, only sections 8 and 13 of Initiative 601 would take effect immediately. Init. 601, § 14(1). The remaining provisions of Initiative 601 would not take effect until July 1, 1995. Id., § 14(2). The staggered effective dates of the two initiatives are significant in terms of your request. It means that there would likely be no significant overlap between the two initiatives until July 1, 1995, when all the provisions of Initiative 601 would go into effect. Thus, if both Initiatives 601 and 602 pass, the question of significant conflict between them will not arise immediately.
We begin our analysis by observing that your request raises questions of first impression in Washington regarding the interpretation of two initiatives, which may be simultaneously enacted by the people, which deal with the same subject in different ways. When statutes passed by the Legislature deal with the same subject in different ways, the courts have developed rules of construction to interpret the statutes and resolve any resulting conflict. In AGO 1971 No. 42 we summarized the rules:
If two statutes on the same subject are irreconcilable, the one that is later in time prevails, since it is the last expression of legislative will, and the earlier statute is impliedly repealed. Great Northern Railway Co. v. Glover, 194 Wash. 146, 77 P. 2d 598 (1938);Paine v. State, 156 Wash. 31, 286 Pac. 89 (1930). Implied repeals are not favored, however, and the courts will try to harmonize the statutes if possible to maintain the integrity of each. Beach v. Board of Adjustment, 73 Wn. 2d 343, 438 P. 2d 617 (1968). A prior statute is not impliedly repealed by a subsequent statute unless the later statute was evidently intended to supersede the earlier one and the statutes are clearly inconsistent so that they cannot be reconciled and both given effect by fair and reasonable construction. Babcock v. School District No. 17, 57 Wn. 2d 578, 358 P. 2d 547 (1961). Finally, while the courts do not always say so in their opinions, the results of the cases indicate that these rules are applied flexibly to achieve a result that is sensible and not absurd or strained.
AGO 1971 No. 42, at 7-8.
The basic rule is that the court will try to avoid any conflict between statutes by harmonizing the provisions that appear to overlap, giving effect and meaning to each. If the court is unable to harmonize the statutes, it applies the statute enacted last on the theory that the later statute repeals the earlier statute. This "implied repeal" of the earlier statute resolves any conflict.
These rules were developed by the court to deal with statutes passed by the Legislature. Your request concerns initiatives enacted by the people. In general, initiatives are interpreted according to the general rules of statutory construction. Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 460, 722 P.2d 808 (1986). However, the rule for choosing the later of conflicting statutes passed by the Legislature does not apply to two initiatives enacted by the people at the same election. There can be no "implied repeal" of an earlier statute when two initiatives are enacted simultaneously because there is no earlier statute.
The Washington courts have yet to fashion a rule to resolve conflicts between initiatives enacted simultaneously. Accordingly, we can only provide a direct answer to your first question which inquires whether provisions of Initiatives 601 and 602 would be in conflictbecause they cannot be harmonized. At this time, we cannot predict how Washington courts would resolve any conflict between the two initiatives. Therefore, our answer to your second question is limited to describing rules of construction our court might adopt, if it were required to choose between the two initiatives.
Do Initiative Measure Numbers 601 and 602 conflict with one another?
The court has set out a two prong test to determine whether statutes that potentially conflict can be harmonized. The court has held that such statutes cannot be harmonized and a repeal occurs when
(1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.
. . .
We have often said that repeals by implication are not favored. This disfavor is the result of a presumption that the Legislature acts with a knowledge of former related statutes and would have expressed its intention to repeal them. However, this presumption runs directly counter to the real probability of legislative oversight that occurs when the Legislature deals with the detail in the mass of statute law within the state.
. . . When these [two prong] tests are fulfilled, the one opposing repeal by implication must show some conditions, facts or legislative history which overcomes the repeal by implication conclusion which exists when the two tests are met.
Local 497 v. Public Util. Dist. 2, 103 Wn.2d 786, 789-90, 698 P.2d 1056 (1985) (citations omitted).
The first prong of the test asks whether (1) the later act covers the entire subject matter of the earlier legislation, (2) is complete in itself, and (3) is evidently intended to supersede prior legislation on the same subject. Although this prong refers to the "later act", we apply it here to the provisions of both initiatives. Both Initiatives 601 and 602 set out a comprehensive scheme to limit state tax and spending increases. Thus, each initiative would appear to cover the entire subject matter and would be complete in itself. It is also clear that each initiative is intended to supersede prior legislation because both initiatives would repeal the present state revenue collection limit, Initiative 62 (chapter 43.135 RCW), and the budget stabilization account (RCW 43.88.520-.540). Init. 601, § 9; Init. 602, § 18.
It also does not appear that the initiatives were intended to operate together. We reach this conclusion based on our reading of the two initiatives. See infra pp. 9-13. Our reading of the initiatives is consistent with material contained in the official Voter's Pamphlet. When interpreting an initiative, the court frequently refers to the official Voter's Pamphlet. Department of Rev. v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). The Voter's Pamphlet statement in support of each initiative does not make reference to the other initiative. Each statement emphasizes features that are unique to the particular initiative. The statement for Initiative 601 points out that the "[v]oters would decide whether higher taxes are needed" and that "[s]pending increases would be limited to the rate of inflation and state population growth". On the other hand, the statement for Initiative 602 points out it would require "a 60% legislative vote to increase taxes within the limit" and "government spending rises only if people's financial condition improves". We take this to be evidence, albeit indirect, that the two initiatives were intended to operate independently.
Based on this analysis, we conclude that the two initiatives meet the first prong of the test. Each (1) covers the entire subject matter; (2) is complete in itself; and (3) is intended to supersede prior or inconsistent statutes because each initiative is intended to operate independently.
The second prong of the test asks whether the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction. Since implied repeals are not favored, a court will try to harmonize the two acts if possible.
Courts employ a number of rules of statutory construction to harmonize acts that, at first blush, appear to conflict. A general statute does not usually repeal an earlier special statute by implication unless the intent to repeal is clear. U.S. Oil & Refining Co. v. Department of Ecology, 96 Wn.2d 85, 88, 633 P.2d 1329 (1981);Herrett Trucking Co. v. Washington Pub. Serv. Comm'n, 58 Wn.2d 542, 544, 364 P.2d 505 (1961). Statutes may be harmonized by giving effect to the more specific and more recently enacted statute. The earlier statute is given operative effect, but not in the area covered by the later, more specific, statute. Morris v. Blaker, 118 Wn.2d 133, 147, 821 P.2d 482 (1992).
The court looks to the legislative history of the statutes. Paulson v. County of Pierce, 99 Wn.2d 645, 650, 664 P.2d 1202 (1983). The court also recognizes that statutes relating to the same general subject may actually regulate different conduct, persons, or categories of material. Thus, the statutes do not actually deal with the same subject in different ways. See e.g.,State v. J-R Distributors, Inc., 82 Wn.2d 584, 604-05, 512 P.2d 1049 (1973).
With these general rules of statutory construction in mind, we turn to the initiatives. In our judgment, when both initiatives become fully operational on July 1, 1995,some provisions of the two initiatives will be in conflict and those provisions cannot be harmonized, giving each effect with a fair and reasonable construction. We will explain this conclusion by examining six areas where the two initiatives deal with the same subject in different ways. This discussion is not meant to be a complete list of potential conflicts between the initiatives. Rather, its purpose is to explain our conclusion that some provisions of the two initiatives cannot be harmonized.
1. Both Initiatives Would Apply to the State General Fund
Initiatives 601 and 602 would both limit expenditures and revenue collection for the state general fund. Section 2(1) of Initiative 601 provides that the "state shall not expend from the general fund" moneys in excess of the state expenditure limit. Section 4(1) provides that any action by the Legislature to raise state revenue, without a vote of the people, may be taken only if state expenditures, including the new revenue, will not exceed the state expenditure limit. This would apply to new taxes for the general fund. Init. 601, §§ 2(1)-(2), 4(1).
Initiative 602 would also limit general fund expenditures and revenue collection. Section 3(7) of Initiative 602 would define the term "state revenue collections" to include "all moneys received, collected, or owed from each and every source as required by law or rule, whether or not such funds are otherwise subject to legislative appropriation, including funds maintained or deposited outside the state treasury." There would be some exceptions from this broad definition, but the state general fund would fall within this definition. Section 6 of Initiative 602 would limit state revenue collections, including collections for the state general fund, to the state revenue collection limit. Section 7(1) of Initiative 602 would limit expenditures, including those from the state general fund, to the revenue collection limit.
The fact that both initiatives apply to the state general fund is significant because, as we shall explain, the two initiatives would provide different instructions about how the general fund is to be limited; how excess revenue collections are to be transferred from the general fund to a state savings account; how the general fund can draw on the state savings account; and how taxes for the general fund may be increased.
2. The Initiatives Would Calculate Different Limits
Initiatives 601 and 602 would use different factors and calculations to establish their respective expenditure and collection limits. The state expenditure limit in Initiative 601 would be calculated by averaging the sum of inflation and population change for each of the prior three fiscal years and increasing the expenditure limit for the next fiscal year by this "fiscal growth factor". Init. 601, § 2(3)-(6). The state revenue collection limit in Initiative 602 would be calculated for each fiscal year by multiplying the total state personal income for the fiscal year in question by a "limitation factor". Init. 602, § 5. The limitation factor is calculated by dividing the sum of total state revenue collections for the fiscal years 1988 through 1992 by the sum of total state personal income for those same fiscal years. Id., §§ 3(9), 4. The state revenue collection limit would apply to both revenue collection and expenditures. Id., §§ 6-7.
The limits established by the two initiatives would be based on completely different theories and calculations. The state expenditure limit in Initiative 601, which also applies to revenue collection, would be based on inflation and population. The state revenue collection limit in Initiative 602, which also applies to expenditures, would be based on state personal income. It is likely that the calculations set by the two initiatives would establish different limits. Thus, one initiative would permit general fund collections and expenditures that would be prohibited under the other initiative, depending on the calculations for any given year.
3. The Initiatives Would Establish Different Reserve Funds
Both initiatives would establish reserve funds into which excess revenue collections would be deposited. However, the purpose and operation of these funds would differ. Initiative 601 would establish an "emergency reserve fund" into which state general fund revenues in excess of the state expenditure limit for the fiscal year would be deposited at the end of each fiscal quarter. Init. 601, § 3(1). The Legislature could appropriate moneys from the emergency reserve fund only with approval of at least two-thirds of the members of each house of the Legislature, and then only if the appropriation would not cause total expenditures to exceed the state expenditure limit. Id., § 3(2). If the balance of the emergency fund were to grow above five percent of the biennial state general fund revenues, the balance would be transferred to an education construction fund. Funds from this account could be used only for common school or higher education construction, unless use of these funds for another purpose were approved by a two-thirds vote of each house of the Legislature and a vote of the people.Id., § 3(3)-(4).
Initiative 602 would create a "revenue reserve fund" into which any state revenue collections in excess of the state revenue collection limit would be deposited on the last day of the fiscal year. Init. 602, § 8(2). The balance of the revenue reserve fund could not exceed two and one-half percent of the immediately preceding fiscal year's state revenue collection limit. Any amount in excess of this two and one-half percent limit would be transferred to a general obligation debt reduction account. Id., § 8(5). The funds in the general obligation debt reduction account could only be used to reduce the outstanding principle and interest of the general obligation indebtedness of the state. Id., § 12. Under Initiative 602, revenue could be transferred from the revenue reserve fund to the state general fund in the event revenue collections for the fiscal year were lower than the revenue collection limit. Id., § 9(1).
The state savings accounts established by the initiatives would be completely different. The initiatives would give different directions with regard to: the limit used to determine whether there are "excess" funds to be deposited in the reserve account; the point in time when the excess is to be calculated and transferred to the reserve account; the circumstances and the vote which would be necessary to appropriate funds from the reserve accounts; the special accounts into which funds over the maximum balance of the reserve account would be transferred; and the purposes for which funds in these special accounts could be applied. Since the state general fund would be subject to the requirements of both reserve accounts, a conflict would be created by these different requirements.
4. The Initiatives Would Establish Different Criteria and Procedures for Emergency Funding
The initiatives would define different "emergency" situations under which additional taxes or revenue measures could be imposed. Initiative 601 would provide that its expenditure limit could be exceeded upon a declaration of emergency approved by a two-thirds vote of each house of the Legislature and signed by the Governor. Init. 601, § 4(3)(a). However, a declaration of emergency would be limited to natural disasters that require immediate government action to alleviate human suffering and provide humanitarian assistance. In such an emergency the state expenditure limit could be exceeded for not more than 24 months following the declaration of the emergency. Id. If additional taxes were required for an emergency, the Legislature would first have to look to the education construction fund and if those funds were exhausted, to the imposition of additional taxes. Any additional taxes would be effective only until 30 days following the next general election, unless an extension were approved at that general election.Id., § 4(3)(b).
Initiative 602 would allow the state revenue collection limit to be exceeded upon the declaration of an emergency by the Governor, if 75 percent of each house of the Legislature approved. Init. 602, § 10(1). The declaration would have to set forth the circumstances constituting the emergency and the amount of state revenue collections in excess of the limit necessary to meet it. Id. There would be no other limitation on the circumstances that might constitute an emergency. Revenue measures enacted to meet the cost of the emergency could be imposed by law or rule and would expire immediately upon the expiration of the declaration of emergency. Id., § 10(5). There would be no requirement that such revenue measures be approved by a vote of the people.
The two initiatives would establish different procedures for declaring an emergency and different definitions of what constitutes an emergency. Both would allow taxes to be increased during an emergency but Initiative 601 would require a vote of the people and Initiative 602 would not.
5. The Initiatives Would Establish Different Procedures for Imposing Additional Taxes
The initiatives would establish different procedures under which the Legislature could enact revenue measures. Initiative 601 would provide that any action by the Legislature that would raise state revenue or require revenue-neutral tax shifts must be approved by a two-thirds vote of each house and only if the new revenue would not exceed the state expenditure limit. Init. 601, § 4(1). If the revenue measure were to exceed the limit, it would not take effect until approved by a vote of the people at a November general election. Id., § 4(2)(a).
Initiative 602 would provide that if projected state revenue collections were below the limit, the treasurer would transfer funds from the reserve account into the state general fund equal to the difference between the projected shortfall in collections and the revenue collection limit. Init. 602, § 9(1). If a revenue gap were to remain after this transfer to the general fund, the Legislature could, by a 60 percent affirmative vote in each house, enact revenue measures necessary to fill the gap. Id., § 9(2). Unlike Initiative 601, Initiative 602 would make no provision for exceeding the state revenue collection limit, except in emergency situations.
The two initiatives differ with regard to the imposition of new taxes. Initiative 601 would permit tax increases beyond the state expenditure limit if approved by a vote of the people. Except in an emergency, Initiative 602 would not permit a tax increase above the state revenue collection limit. The conflict between the two initiatives on this point is not limited to a vote of the people and whether their various limits may be exceeded. The limits themselves would likely be different. For example, a tax increase that would not exceed the state expenditure limit in Initiative 601, might exceed the state revenue collection limit in Initiative 602. Thus, one initiative might permit a tax increase that would be prohibited by the other initiative.
6. The Initiatives Would Amend RCW 43.135.060 in Different Ways
Both initiatives would repeal the current state revenue limit, Initiative 62, chapter 43.135 RCW, with the exception of RCW 43.135.060. Init. 601, § 9(6)-(12); Init. 602, § 18(6)-(13). RCW 43.135.060 limits the ability of the Legislature to impose responsibility for new programs or increased levels of service on any taxing district, unless the districts are reimbursed by the state for the cost thereof. The initiatives would amend RCW 43.135.060 in different ways. The main difference would arise over the amendment to RCW 43.135.060(2), which provides:
The amount of increased local revenue and state appropriations and distributions that are received or could be received by a taxing district as a result of legislative enactments after 1979 shall be included as reimbursement under this section. This subsection does not affect litigation pending on January 1, 1990.
Initiative 601 would repeal RCW 43.135.060(2). Init. 601, § 5(1). Initiative 602 would leave this provision intact, except for substituting the term "political subdivision of the state" for the term "taxing district". Init. 602, § 13(2). In addition, Initiative 602 would add the following language to RCW 43.135.060: "(4) No portion of the reimbursement provided under subsection (1) of this section by the state to a political subdivision may be in the form of authorization for a new or increased revenue measure." Id., § 13(4).
The two initiatives appear to be in direct conflict with regard to RCW 43.135.060(2). Initiative 601 repeals the provision and Initiative 602 does not. This directly affects the calculation of the reimbursement to a political subdivision, if the Legislature assigns it a new responsibility.
In our opinion, the provisions of Initiatives 601 and 602, related to the six categories that we have just discussed, cannot be harmonized. Both initiatives appear to be general statutes that would deal with the questions of taxing and spending in a comprehensive manner. In our judgment, the only way to harmonize the two initiatives would be to essentially rewrite them. We do not believe they can be reconciled, if both initiatives are given effect by a fair and reasonable construction.
Assuming that Initiative Measure Numbers 601 and 602 conflict with one another, what rules of law should be applied to resolve the conflict should the measures both pass in November?
According to your letter, your second question is primarily directed to asking how Washington courts would resolve any conflict between the two initiatives. However, this decision need not be left to the courts. It is possible that the Legislature itself could act to resolve any conflicts between the two initiatives. Owing to the staggered effective dates, the two initiatives would not both become fully effective until July 1, 1995. The conflicts we have identified would not occur until then. This would give the Legislature the opportunity to resolve any potential conflict through legislative action. Article 2, section 1(c) of the Washington Constitution, provides in part:
No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment;Provided, That any such act, law, or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution and no amendatory law adopted in accordance with this provision shall be subject to referendum. But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon.
Thus, the Legislature by a two-thirds vote in both houses could reconcile any conflict between the two initiatives. Such action would, presumably, keep this difficult question out of the courts.
If the question is to be resolved by our courts, we must turn to the rules of statutory construction. Were we dealing with two statutes passed by the Legislature, your second question would be easily answered. We believe the later statute would be effective based on the theory that it repeals the earlier statute. However, as we have pointed out, that rule does not apply in this case. Thus, the court must find some other way of choosing between the two initiatives. This is very important. If there is a conflict between Initiatives 601 and 602 that cannot be resolved, it would be virtually impossible for state officials to comply with the law. However, we believe that our courts would strive to adopt a practical rule that could be applied to choose between the two initiatives. This would be consistent with our courts' traditional approach to the initiative process which stresses practical common sense solutions. The Washington Supreme Court first articulated this approach in Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915). InGottstein, the court was concerned with article 2 section 1(a) of the Washington Constitution, which reserves the initiative power to the people. In interpreting this constitutional provision, the court said:
"Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss."
Id.at 509 (quoting Judge Story, Constitutional Law, Vol. 1 (5th ed.) at § 451).
With this common sense approach in mind, we have identified several rules of construction the court might adopt to choose between the two initiatives. We will explain these possible approaches; however, we cannot predict with any degree of certainty which the court might adopt or whether the court would fashion a new approach we have not considered.
The first possibility is that the court could look to the dates upon which the initiatives go into effect. The Washington Supreme Court applied this rule to statutes in Spokane Cy. v. Certain Lots in the City of Spokane, 153 Wash. 462, 279 P. 724 (1929). InSpokane County, the court was confronted with overlapping statutes passed by the Legislature on the same day and signed by the Governor on the same day. This is similar to the situation posed by your question. The court could not harmonize the statutes, so it chose the statute that became effective first, owing to the existence of an emergency clause. The court said:
There are special rules to which the courts resort for the purpose of determining which of two conflicting acts, passed at the same session of the legislature, will be allowed to prevail when the more general rules are inapplicable. One of such rules is that effect will be given to the act latest in time, and to this rule we have ourselves given approval. Other courts have held that the last act approved by the governor will be given effect. Still others have held that the one going into effect last will prevail.
But none of these rules, with the possible exception of the last, can be applied to the conditions here shown. By a somewhat curious coincidence, both of these acts were passed by the legislature on the same day, both were authenticated by the signatures of the presiding officers of the two branches of the legislative body on the same day, and both were approved by the governor of the state on the same day. The first of the stated rules is therefore inapplicable, because of the manifest impossibility of determining which is latest in time. The second is inapplicable for a similar reason. The third is more to the point, since the acts went into effect on different days. But inHeilig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164, we gave effect to the contrary rule. In that case it appeared that the legislature, in 1893, passed two conflicting acts on the same subject-matter. While the acts were passed on different days, they were approved by the governor on the same day. The act latest in time had an emergency clause, and went into effect on its approval by the governor. The other act was without such a clause, and went into effect three months later. We gave effect to the statute containing the emergency clause which went into effect first[.]
153 Wash. at 472 (citations omitted, emphasis added).
The court inSpokane County thus noted the usual rule that the statute that goes into effect last controls, but adopted a different approach in the situation where an emergency clause caused one of the statutes to go into effect first.
WhileSpokane County raises the possibility that the court would look to the effective date to determine which enactment would control, we have some doubt whether the court would adopt this approach in the case of simultaneously enacted initiatives. The rationale for the rule articulated by the court in Spokane County does not appear to apply in this situation. According to the court, the rationale for the rule is "[t]he simple fact of there being an emergency clause would tend to show that the subject-matter of the act was more clearly and pointedly before the legislature than the subject-matter of the other act." Id. at 472 (quotingHeilig v. City Council of Puyallup, 7 Wash. 29, 34 P. 164 (1893)).
It is hard to apply this rationale in the context of competing initiatives. Clearly, Initiatives 601 and 602 are both pointedly before the voters of the state. The court itself expressed doubt about the further application of the rule stating: "It may be that the rule here announced cannot be one of uniform application, as instances can be readily conceived where its application would tend to thwart rather than give effect to, the legislative will." Spokane County at 472. Application of a mechanical rule based on effective date could thwart legislative will if applied to two initiatives passed simultaneously. If both initiatives pass, it is likely that one will receive more votes than the other. It may well thwart the will of the people to choose the initiative that received the fewest number of votes based simply on its effective date.
This brings us to a second possibility that would be based on legislative will of the people voting on the two initiatives. The court could choose the initiative that receives the greatest number of votes.
There is no direct authority for our court to apply such a rule. Unlike some states, such as California, Washington does not have a general constitutional provision that requires the initiative with the highest number of votes to prevail in the event of a conflict. The only provision dealing with competing initiatives in Washington is in article 2, section 1(a), which provides in part:
The legislature may reject any measure so proposed by initiative petition and propose a different one dealing with the same subject, and in such event both measures shall be submitted by the secretary of state to the people for approval or rejection at the next ensuing regular general election. When conflicting measures are submitted to the people the ballots shall be so printed that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and secondly, as between one and the other. If the majority of those voting on the first issue is for neither, both fail, but in that case the votes on the second issue shall nevertheless be carefully counted and made public. If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the second issue shall be law.
This provision in article 2, section 1(a) does not directly address two competing initiatives to the people. Rather, it applies when both an initiative to the Legislature and an alternative measure passed by the Legislature appear on the ballot.
Despite the fact that article 2, section 1(a) does not apply directly, we have discovered authority from other states that have applied this rule, despite the absence of a constitutional provision directly on point. InIn re Proposals D & H, 339 N.W.2d 848 (Mich. 1983), the Michigan Supreme Court considered a measure passed by the legislature and referred to the people and an initiative to the legislature that the legislature refused to enact. The two measures were in conflict. Both appeared on the ballot and both passed.
Michigan has a provision in its constitution similar to article 2 section 1(a), but the court ruled that it did not apply directly because the measure referred by the legislature was not a "countermeasure" within the meaning of the Michigan constitution.Id., at 852-53. Nevertheless, the Michigan court sustained the measure that received the greatest number of votes by borrowing the conflict resolution provision of the constitution that applied to initiatives to the Legislature. The court said:
We acknowledge that there is no directly applicable constitutional provision to guide us in resolving this question. The constitution of this state does not contain a provision to resolve the situation in which voters approve both an initiative proposal and a legislative enactment submitted to the voters for approval. However, as a matter of constitutional interpretation, we are not precluded from looking to other sections of the constitution for guidance in deciding this issue.
Article 2, § 9, ¶ 5 of the Constitution of 1963 contains the following conflict resolution provision:
"If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail."
We conclude that this provision may appropriately be "borrowed" to resolve the conflict presented here.
339 N.W.2d at 854 (emphasis added).
InIn re Interrogatories Propounded by the Senate Concerning House Bill 1078, 536 P.2d 308 (Colo. 1975), the Colorado Supreme Court reached a similar result in a somewhat different context. In re Interrogatories concerned conflicting amendments to the state constitution which were both adopted by the voters. There was no provision in the Colorado Constitution that provided the constitutional amendment receiving the highest number of votes would be adopted. However, there was a statute in the chapter pertaining to initiatives and referendums that provided: "[I]n case of adoption of conflicting provisions, the one which receives the greatest number of affirmative votes shall prevail". Id. at 314. The court applied this statute to choose between the conflicting constitutional amendments and adopted the amendment with the greatest number of votes.
The possibilities we have discussed are not intended to be exclusive. If this question reaches the courts, it will be a matter of first impression and the court might apply an innovative solution we have not considered. Nevertheless, these rules represent possible solutions to the problem and also serve to highlight the difficulty of the question.
We trust our opinion will be of assistance to you.
Very truly yours,
WILLIAM B. COLLINS
Senior Assistant Attorney General
Copies of Initiatives 601 and 602 are attached to this opinion.
Section 8 of Initiative 601 would provide that no fee may be increased in any fiscal year by a percentage in excess of the fiscal growth factor for that fiscal year without prior legislative approval. Section 13(1) of Initiative 601 would provide that the state may raise existing taxes, impose new taxes, or make revenue-neutral tax shifts only after approval of a majority of the voters at a November general election. Section 13(2) would provide that Section 13 expires on July 1, 1995.
In Spokane v. Taxpayer, 111 Wn.2d 91, 758 P.2d 480 (1988), the Supreme Court summarized some of the rules for construing an initiative as follows:
Statutory language must be given its usual and ordinary meaning, regardless of the policy behind the enactment. Judicial interpretation should focus on the voters' intent and the language of the initiative "as the average informed lay voter would read it." In determining voters' intent, courts should not read into an initiative "technical and debatable legal distinction[s]" not apparent to the average informed lay voter. However, if the general rules of statutory construction are to be followed, the intent behind the language of an enactment becomes relevant only if there is some ambiguity in that language.
Id., at 97-98 (citations omitted). In addition, if the intent of the voters is not clearly expressed in the initiative, the court may determine the voters' intent by considering the legislative history of the measure, including material contained in the official Voter's Pamphlet. Tacoma v. State, 117 Wn.2d 348, 356, 816 P.2d 7 (1991); Department of Rev. v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973).
The Colorado Supreme Court, addressing the question of whether two simultaneously adopted constitutional amendments were in conflict, stated: "The test for the existence of a conflict is: Does one authorize what the other forbids or forbid what the other authorizes?" In re Interrogatories Propounded by the Senate Concerning House bill 1078, 536 P.2d 308, 313 (Colo. 1975).
Copies of the Voter's Pamphlet statements relating to Initiatives 601 and 602 are attached to this opinion.
Prior to July 1, 1995, only two provisions of Initiative 601 would go into effect--sections 8 and 13. See supra, p. 4, n.2. A conflict could occur during this period prior to July 1. For example, Initiative 602 would permit the Legislature, by a 60 percent vote in each house, to raise taxes if there was a gap between projected state collections and the state revenue collection limit and reserve funds were insufficient to make up the difference. Init. 602, § 9. On the other hand, section 13 of Initiative 601 would require any new taxes to be approved by a vote of the people in a November general election. While there may be other areas of overlap prior to July 1, 1995, we will confine the remainder of our analysis to analyzing potential overlap if both initiatives become fully effective.
Initiative 601 also limits increases in fees. Init. 601, § 8.
Initiative 602 would also repeal RCW 43.135.010, which sets out the findings and declarations of Initiative 62. Init. 602, § 18(6). Initiative 601 would amend this section and the amended section would set out the findings and declarations of Initiative 601. Init. 601, § 1.
This is not to say that all of the provisions of the two initiatives would be in conflict. For example, Initiative 602 would rescind all actions by the state to increase state revenue collections over those in effect on December 31, 1992. Init. 602, § 17. There would be no corresponding provision in Initiative 601.
Some conflict could occur before this date. See supra, p. 8, n.6.
When we say that the court must choose between Initiatives 601 and 602, we do not necessarily mean that the court would apply all the provisions of one initiative and none of the provisions of the other initiative. Since the two initiatives represent comprehensive integrated schemes to deal with taxing and spending, this might be one result. On the other hand, the court might choose between the two initiatives only in areas of conflict. In areas where there is no conflict, the court might apply the provisions of both. SeeYoshisato v. Superior Court, 2 Cal. 4th 978, 9 Cal. Rptr. 2d 102, 831 P.2d 327 (1992), for a discussion of how the California court determines, under that state's constitution, whether to apply all of one initiative, or resolve conflicts provision by provision. Our courts may or may not adopt a similar approach and we will not speculate here how the court might proceed.
There is an old rule of construction that two conflicting proposals adopted by the people in the same election must both fail, if it is impossible to reconcile them and there is no basis to choose between them. Utter v. Moseley, 100 P. 1058, 1059 (Idaho 1909). Although courts recite this rule, we have found no case in which this rule has been applied. Rather, the courts have found a way to harmonize the proposals or choose between them. Id. at 1059-60; Opinion to the Governor, 80 A.2d 165, 167-68 (R.I. 1951).
It is not clear how these rules would apply in this case. Two provisions of Initiative 601 would go into effect immediately. The remaining provisions would not become operative until July 1, 1995. On the other hand, all of Initiative 602 would go into effect immediately. Thus, under the first rule, it might be argued that Initiative 601 controls because it would go into effect last. Under the second rule, it might be argued that Initiative 602 controls because all of its provisions would go into effect immediately.
In In re Proposals D & H, 339 N.W.2d 848, 853, (Mich. 1983), the Michigan Supreme Court was confronted with two conflicting initiatives enacted by the people. See infra at p. 18. The court declined to apply a rule that would choose the initiative that received fewer votes because it "would be in derogation of the expressed popular choice" for the court to "invalidate a proposal which has been enacted by almost 60% of the voters and validate a proposal adopted by a bare majority."
The California Constitution provides: "If provisions of two or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail." Cal. Const., art. II, § 10, subd. (b).